Mental health clinicians clarify the referral questions with the attorney prior to accepting the case. In order to do so effectively, clinicians should be informed of the relevant statutes, case law, and other criteria considered by the legal decision makers. In addition, consideration should be given to social science research as it pertains to the legal questions of a given case.

II. Determine the Scope of the Evaluation

Mental health clinicians should determine which legal criteria are relevant for consideration in a forensic mental health assessment. That is, before determining how a construct can be assessed, the clinician must determine the appropriateness of the construct.

Certain legal criteria are issues of fact (e.g., age, prior record) while others are “questions beyond the scope of clinical forensic expertise” (e.g., the impact of the offense on the community). Although neither of these areas are formally “assessed,” they are not ignored and are “important for the assessment of legally relevant capacities and behavior that are addressed by the evaluation” (Heilbrun, Marczk, & DeMatteo, 2002).

III. Translate Legal Criteria to Psychological Constructs

Mental health clinicians translate legal criteria to psychological constructs and develop a plan of action for assessing those constructs.

Legal criteria and psychological constructs can be difficult to define and operationalize. Mental health clinicians first determine the meaning(s) and intent of legal terminology and criteria based on case law and other legal sources and analyses. On a more practical level, mental health clinicians discuss with the referral source (judge, attorney) about the purpose(s) of the evaluation and potential uses of the evaluation results. Based on this information, mental health clinicians determine what psychological constructs are relevant and applicable to the case. In assessing these constructs, mental health clinicians rely on empirically validated assessment tools and methods that will be admissible in court.

IV. Use of Psychological Tests and Methods

Mental health clinicians utilize valid, reliable, and generally accepted methods of accessing constructs. Whenever possible, the mental health clinician uses multiple methods for assessing and describing constructs. Although it may be tempting for mental health clinicians (and judges and attorneys) to rely solely on the results of a certain test, care must be taken to remember that a more comprehensive evaluation requires consideration of a multitude of factors measured or assesses through multiple measures and methods.

A.Measures of Intelligence, Adaptive Functioning, and Academic Achievement: The most widely used intelligence tests are the Wechsler Intelligence Scales (e.g., WAIS, WISC-IV). These scales provide information about a person’s functioning in four areas: verbal ability; nonverbal reasoning and spatial abilities; processing speed; and working memory.

Adaptive Functioning: Adaptive behavior can be measured with a number of tools (e.g., Vineland Adaptive Behavior Scales), which are used to determine if a person meets criteria for Mental Retardation. Information about a defendant’s adaptive functioning is also relevant to a determination of treatment needs.

Academic Functioning: There are a number of different ways to measure academic achievement, ranging from very brief screening tools to rather extensive assessments (e.g., Woodcock Johnson). The Wide Range Achievement Tests provide a relatively brief but thorough assessment of achievement in Spelling, Reading, and Mathematics. Practically, a measure of reading ability ensures that the defendant has the requisite skills to complete other tests (e.g., PAI, which has a 4th grade reading level). In terms of the evaluation, a measure of academic achievement allows for the diagnosis or ruling-out of learning disabilities, which will guide decisions about treatment needs.

B.Personality Testing and Measures of Psychopathology, Behavioral Disturbance, and Substance Abuse: There are hundreds of different personality tests (see See T, Grisso, G. Vincent, & D. Seagrave’s Mental Health Screening and Assessment in Juvenile Justice (2005) for a more complete review of instruments used in the juvenile justice system). The most widely used comprehensive assessment instruments include the Minnesota Multiphasic Personality Inventory (MMPI-2 and MMPI-A); the Personality Assessment Instrument (PAI and PAI-A); the Diagnostic Interview Schedules; and the Millon Clinical Inventories. These instruments assess a number of psychological constructs and personality traits. Some have scales describing the person’s response style, which can be helpful in establishing the person’s attitude and motivation during the evaluation.

Other instruments are also available to assess specific areas, such as a particular disorder or problem area (e.g., substance abuse, anger, aggression). These instruments are good supplements to the more comprehensive instruments described above but may not always include an index of a person’s response style. In addition, these scales will vary in their utility and psychometric properties, and mental health clinicians should be able to demonstrate that the scales meet the standards for admissibility in court.

C.Measures of Effort or Malingering: Some general personality measures (e.g., MMPI, Millon Clinical Multiaxial Inventory, PAI) have scales of embedded in them to assess response style and profile validity. In addition, there are some basic interview techniques and means of assessing test-taking effort available to clinicians assessing adults and adolescents.

Mental health clinicians should be aware of the possibility that those involved in the legal system may exaggerate or fabricate symptoms. As a matter of routine, some measure or other assessment of effort should be conducted in every case. This will (hopefully) increase the validity of the findings and opinions, as well as preempt challenges during cross-examination.

D.Forensic Assessment Instruments:

V. Communicate with the Referral Source

Mental health clinicians maintain communication with the referral source and makes changes to the evaluation objectives and process as necessary.

Additional evaluation questions: Over the course of the evaluation, mental health clinicians may become aware of or suspect that a defendant lacks certain legal capacities (e.g., to stand trial, to waive Miranda rights). With ongoing communication with the attorney, clinicians can recommend or question the attorney about the relevance of these issues in the preparation of the case.

Unhelpful Information is uncovered: Sometimes defendants will provide conflicting or “harmful” information about the case. It is also possible that as the evaluation progresses the evaluator begins to form an opinion that would not be helpful in the case. Therefore, mental health professionals inform the attorneys of all information that is gathered, as well as how that information influences the forensic opinion throughout the evaluation process.

Conflicts of Interest: When mental health clinicians become aware that there is an actual or potential conflict of interest – or when a clinician’s objectivity is otherwise compromised – then the clinician must inform the attorney of those conflicts.

VI.Applying Psychological Research

Mental health clinicians maintain up-to-date knowledge of research relevant to the forensic issues of a case and are able to apply that research appropriately.

No Report or Testimony: Following the evaluation and prior to the hearing and preparation of any report, the mental health clinician and attorney should discuss the benefits and risks of using the expert; preparing a letter/report; and/or testifying in court.

Letters/Reports: Letters are usually brief, approximately 2-4 pages in length; highlight important aspects of the juvenile’s history; and it concludes with information relevant to the legal criteria described in the general statutes. Reports are lengthier and provide a more detailed account of the juvenile’s history; evaluation process; and description of diagnoses (if any), opinions and recommendations.

Testimony: If testimony is required, it may be helpful for the mental health clinician and/or attorney to develop a list of possible questions, including potential cross-examination questions.

Regardless of format, make sure that all the components of the statutes are covered – as well as any other pertinent factors in the case – before submitting the report or calling the expert to testify.

In addition:

·The report/testimony should respond directly to the referral question and legal criteria;

·Communications should avoid jargon;

·The evaluator should not respond directly to the ultimate legal question directly;

·The evaluator should provide a full description of findings so that they need change little under cross-examination (Heilbrun, Marczk, & DeMatteo, 2002)